Dependant’s Support – Do common law spouses have to live in the same residence?
Paul Trudelle recently blogged about the Stajduhar v. Wolfe decision of the Ontario Superior Court of Justice, wherein the court was faced with the question of whether two individuals who did not live together in the same residence could meet the definition of “spouse” for the purposes of seeking support after death pursuant to Part V of the Succession Law Reform Act (the “SLRA“). In ultimately concluding in such a decision that the two individuals did not meet the definition of “spouse”, such that the surviving individual could not seek support after death, much emphasis was placed on the fact that the two individuals did not “live” in the same residence. In coming to such a decision, the court stated:
“In conclusion, I find that Branislava has failed to prove that she was a dependent spouse as defined by s. 57 of the SLRA at the time of Jeffrey’s death. The evidence satisfies me that the couple never lived together and thus did not cohabit for any period of time.” [emphasis added]
But is such a finding in keeping with the previous case law on the subject? Do two individuals need to live in the same residence to be considered “spouses” within Part V of the SLRA?
The definition of “spouse” within Part V of the SLRA includes two people who have “cohabited” continuously for a period of not less than three years. “Cohabit” is in turn defined as “to live together in a conjugal relationship, whether within or outside marriage“. When read together, to meet the “common law” definition of spouse in Part V of the SLRA two people must live together in a conjugal relationship continuously for a period of not less than three years.
As the words “live together” are contained in the definition of spouse, when read in its literal sense it would appear self-evident that two individuals must “live together” in the same residence to be considered common law spouses. Importantly however, this is not how the court has historically interpreted the subject.
Prior to Stajduhar v. Wolfe, the leading authority on what was meant by two individuals “living together in a conjugal relationship” was the Supreme Court of Canada’s decision of M. v. H. In M. v. H., the Supreme Court of Canada confirmed that in determining whether two individuals lived together in a conjugal relationship you are to look to the factors established by paragraph 16 of Molodowich v. Penttinen, which include:
- Did the parties live under the same roof?
- What were the sleeping arrangements?
- Did they maintain an attitude of fidelity to each other?
- Did they participate together or separately in neighbourhood and community activities?
- What was the attitude and conduct of the community towards each of them and as a couple?
The Supreme Court of Canada was clear in M. v. H. that the factors established by Molodowich can be present in varying degrees, and that not all categories must be met for two individuals to be considered spouses. When the Ontario Court of Appeal in Stephen v. Stawecki applied the factors employed by M. v. H. specifically to the question of whether two individuals must live in the same residence to be considered spouses, the court concluded that they did not, and that living arrangements are only one of many factors to consider. In coming to such a conclusion, the Court of Appeal states:
“We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.” [emphasis added]
The recent Stajduhar v. Wolfe decision notably does not contain any reference to Stephen v. Stawecki, nor to the Supreme Court of Canada’s previous consideration of the issue in M. v. H., such that it is not clear whether such cases were considered by the court before determining that the two individuals were not “spouses”. As a result, it is not clear whether M. v. H. and Stephen v. Stawecki will continue to be the leading authorities on the issue, such that Stajduhar v. Wolfe is an outlier decision, or whether Stajduhar v. Wolfe represents a new line of thinking for the court on whether two individuals must live in the same residence to be considered spouses.
Thank you for reading.